Citation Nr: 1720084
Decision Date: 06/06/17 Archive Date: 06/21/17
DOCKET NO. 12-34 341 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California
THE ISSUES
1. Entitlement to service connection for hypertension, to include as secondary to a service-connected disability.
2. Entitlement to service connection for a low back disorder, to include as secondary to a service-connected disability.
3. Entitlement to service connection for a skin disorder, as a result of burns from an explosion.
4. Entitlement to service connection for left side peripheral neuropathy, to include as secondary to a service-connected disability.
5. Entitlement to gastroesophageal reflux disorder (GERD), to include as secondary to a service-connected psychiatric disability.
6. Entitlement to service connection for erectile dysfunction (ED), to include as secondary to a service-connected psychiatric disorder.
7. Entitlement to service connection for a sleep disorder, to include as secondary to a service-connected psychiatric disorder.
8. Entitlement to service connection for posttraumatic stress disorder (PTSD).
9. Entitlement to an initial compensable rating for headaches.
10. Entitlement to an initial rating in excess of 10 percent for residuals of traumatic brain injury (TBI).
11. Entitlement to an initial rating in excess of 50 percent for anxiety disorder, not otherwise specified (NOS), and depressive disorder, NOS.
12. Entitlement to an effective date earlier than March 12, 2009 for service connection for anxiety disorder, NOS and depressive disorder, NOS.
13. Entitlement to an effective date earlier than November 23, 2009 for service connection for headaches.
14. Entitlement to an effective date earlier than November 23, 2009 for service connection for TBI.
15. Entitlement to a total rating based upon individual unemployability, due to service-connected disabilities (TDIU).
REPRESENTATION
Appellant represented by: John S. Berry, Esquire
ATTORNEY FOR THE BOARD
G. Jivens-McRae, Counsel
INTRODUCTION
The Veteran had active service from April 1976 to June 1978.
These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2010, June 2010, May 2011, and October 2012 rating decisions of the Department of veterans Affairs (VA) Regional Office (RO) in San Diego, California. Service connection for hypertension, low back disorder, left side neuropathy, GERD, ED, and sleep disorder, to include as secondary to a service-connected disability; and PTSD and a skin disorder as a result of burns from an explosion was denied. Service connection was granted for headaches, TBI, and anxiety disorder, NOS, and depressive disorder, NOS. The Veteran disagreed with the ratings of the service connection grants. An earlier effective date for service connection for anxiety disorder, NOS, and depressive disorder, NOS, TBI, and headaches, was denied as was a TDIU. The current appeal ensued.
With respect to the Veteran's service connection claim for PTSD, the Board acknowledges that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran has been service connected for anxiety disorder, NOS, and depressive disorder, NOS. He maintains that he should also be service connected for PTSD. Under Clemons, it can be broadened to include a claim for any acquired psychiatric disorder, to include PTSD. As such, the Veteran's claim for an initial rating for anxiety disorder, NOS, and depressive disorder, NOS, is inextricably intertwined with the PTSD issue and is held in abeyance until the claim for service connection for PTSD is finally adjudicated, as noted below.
The issues were remanded in March 2015 for further development.
The issues of service connection for hypertension, to include as secondary to service-connected disability; service connection for ED; service connection for PTSD; initial ratings for headaches, TBI, anxiety disorder, NOS, and depressive disorder, NOS; earlier effective dates for service connection for anxiety disorder, NOS, and depressive disorder, NOS, headaches and TBI and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if additional action is required on his part.
FINDINGS OF FACT
1. A low back disorder was not first manifested during active service or within one year of the Veteran's separation from service, and the preponderance of the evidence is against a finding that the current disability is etiologically related to active service, or due to or aggravated by a service-connected disability.
2. The competent and credible evidence shows that the Veteran sustained burns in an explosion in service that resolved without residual disability.
3. Left side peripheral neuropathy was not manifested during active service or within one year of the Veteran's separation from service, and the preponderance of the evidence is against a finding that the current disability is etiologically related to active service, or due to or aggravated by a service-connected disability.
4. GERD was not manifested during active service, and the preponderance of the evidence is against a finding that the current disability is etiologically related to active service, or due to or aggravated by a service-connected psychiatric disability.
5. The competent and credible evidence fails to show that the Veteran had a sleep disorder in service or otherwise related to his active service, separate from his service-connected anxiety NOS, and depression NOS.
CONCLUSIONS OF LAW
1. A low back disorder was not incurred or aggravated by active service, nor may arthritis be presumed to have been, nor is a low back disorder proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2016).
2. A skin disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303 (2016).
3. Left side peripheral neuropathy was not incurred or aggravated by active service, nor may it be presumed to have been, nor is it proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2016).
4. GERD was not incurred or aggravated by active service, nor is it proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2016).
5. A sleep disorder was not incurred or aggravated by active service, nor is it proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2016).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duties to Notify and Assist
Before addressing the merits of the claims decided herein, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.326(a) (2016).
The notice requirements of the Veterans Claims Assistance Act of 2000 (VCAA) apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486.
Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. The VCAA duty to notify was satisfied by way of letters sent to the Veteran in June and September 2010 and October 2011. The letters fully addressed all notice elements. They informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With those letters, the RO effectively satisfied the notice requirements with respect to the issues of service connection decided herein on appeal. Under these circumstances, the Board finds that adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect).
VA also has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records, private treatment records, and other pertinent VA treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016). The RO associated the Veteran's service treatment records, and VA treatment records with the claims file. Therefore, no outstanding evidence has been identified and reviewed.
The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See Green v. Derwinski, 1 Vet. App. 121 (1991). The Veteran underwent VA examinations in connection with service connection claims on appeal decided herein. The Board finds the VA examination/evaluation reports to be thorough and adequate upon which to base a decision with regard to the Veteran's service connection claims on appeal. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to evaluate the Veteran's disability under the applicable rating criteria.
The Board also notes that the Veteran applied for and was granted Social Security Administration (SSA) disability benefits.
In Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010), the United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that 38 U.S.C.A. § 5103A did not require VA to obtain all medical records or all SSA disability records, only those that are relevant to the veteran's claim. Here, the Veteran applied for and was granted SSA disability benefits. The records used to determine the Veteran's Social Security disability claim were of limited relevance. Most of the records were unrelated to the disabilities at issue.
The Veteran was offered the opportunity to set forth his contentions at a Board hearing. He declined.
In view of the foregoing, the Board finds no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims decided herein. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Service Connection
Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131;38 C.F.R. § 3.303. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d).
Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)).
Service connection may be established under the provisions of 38 C.F.R. § 3.303 (b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. In addition, certain chronic diseases, including arthritis and peripheral neuropathy, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.
In this case, arthritis and peripheral neuropathy, are "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b).
Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis and peripheral neuropathy, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id.
The requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, and a claimant may be granted service connection even though the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).
In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a).
The Federal Circuit has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).
Service connection may also be granted when a claimed disability is found to be proximately due to or the result of a service-connected disability, or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service-connected disability, not to the natural progress of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(a) (2016); see also Allen v. Brown, 7 Vet.App. 439, 448 (1995). Under the current version of 38 C.F.R. § 3.310, VA will not concede such aggravation unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation and by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The RO will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (rating schedule) and determine the extent of aggravation by deducting the baseline level of severity and any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(a) (2016).
In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998).
Finally, in a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102.
Low back disorder
The Veteran asserts that service connection for a low back disorder is warranted based on service incurrence. It is also maintained that, in the alternative, the back disorder is secondary to a service-connected disability.
Service treatment records show no findings, treatment, or diagnoses of a low back disorder during service or within one year of service discharge.
Since service, the Veteran has been seen and treated on various occasions for low back pain. In January 2003, x-ray findings showed mild degenerative changes of the thoracic spine. In March 2003, the Veteran was seen for low back pain which he has had intermittently since 1988. He was seen in October 2008, for back pain. He complained of problems with the use of a TENS unit. In August 2008, he came to VA for a prescription for Ibuprofen for his back. In January 2009, the Veteran complained of low back pain which caused him to limp and be unable stand for any more than a few minutes. In June 2009, he was seen by VA indicating that he had been unemployed since January 2008, when he worked in apartment maintenance, then went on disability for his back. In August 2014, the Veteran's chronic low back pain was exacerbated by a rear-end car accident.
The first medical evidence of a low back disorder was in March 2003, when the history indicated that the Veteran had low back pain on an intermittent basis since 1988. He was treated with physical therapy and Ibuprofen on an intermittent basis, but there was no indication in the record of this low back pain being related to his service. No other medical evidence of record related to low back complaints and treatment after 2003, relates his low back complaints to service.
The Board emphasizes that there were no findings, treatment, or diagnoses of a low back disorder in service. There is also no evidence of record that a low back disorder was diagnosed within one year of the Veteran's service discharge. The contemporaneous objective medical evidence is simply against the finding that a low back disorder was shown/diagnosed during the Veteran's active service nor was a low back disorder (arthritis) shown within the presumptive period for service connection.
However, this does not in itself preclude a grant of service connection. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). A review of the post-service evidence does not support the conclusion that the Veteran's low back disorder is causally related to active service.
Specifically, other than the Veteran's statements of such, the competent and credible evidence is against the finding that his claimed low back disorder is related to service. The Veteran indicated during VA outpatient treatment in March 2003, that he had low back pain intermittently since 1988. The evidence of record shows these findings.
The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997)); see also Cartright v. Derwinski,
2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").
In this case, the Board observes that the Veteran is not competent to state that he had a low back disorder since active service. It is true that he is competent to identify some types of symptoms that could be ascribed to a low back disorder. See Jandreau. ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer.") However, the Board finds that arthritis of the low back is not the type of physical malady that a layman may identify through any observable symptoms. Moreover, even if the Veteran is found to be competent, the Board is within its province to weigh that testimony and to make a credibility determination.
Significantly, with respect to credibility, any reported history of a low back disorder in service is inconsistent with the other evidence of record which shows that in 2003, he stated that he had a low back disorder intermittently since 1988. The fact remains that there is no evidence of record that shows a diagnosis of a low back disorder prior to 1988, which was nearly 30 years after service discharge. Based on these findings, service connection for a low back disorder is not warranted. The preponderance of the evidence is against the claim.
Skin disorder
The Veteran asserts that he has a skin disorder as a result burns from an explosion in service.
Service treatment records show that in September 1976, the Veteran was on a 109 mm range and was brought via field vehicle for tinnitus, bilaterally, after an explosion. He was oriented to name, company and social security number, but had to be asked twice for it. There were burns visible. The assessment was concussive syndrome.
Upon service discharge, there were no findings, treatment, or diagnosis of scars during the examination.
After service, the Veteran underwent a VA examination in October 2012. It was stated that the Veteran was in training at Camp Pendleton when an anti-tank weapon exploded, which resulted in first degree burns presented as a superficial erythematous patch over the anterior aspect of the neck. The burned area was cleaned and bacitracin was applied. No skin graft was done. It healed well with no residual disfiguring scar. Subjective complaints showed no pain, itching, or sensory changes of the burned area on the anterior aspect of the of the neck. The objective findings showed no evidence of a visible scar and no disfigurement.
As to his claim for service connection for a skin disorder, as a result of burns from an explosion, review of the evidence of record shows no indication of residual scarring from burns sustained in service.
Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C.A. § 1110 (West 2014); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). "In the absence of proof of a present disability there can be no valid claim." See Brammer v. Derwinski,
3 Vet. App. 223, 225 (1992).
The Board notes the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, however, there is no medical evidence of a burn scar or skin disorder at any time during the period under appellate review. The evidence of record has shown that the Veteran has not presented any medical evidence of a burn scar any time during the appeal period or at service discharge. Any skin disorder occurring in service resolved without residual disability.
Absent the Veteran's personal statements, there is no evidence that he currently suffers from a burn disorder. The Board notes that the Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson v. Shinseki, (quoting Jandreau v. Nicholson). Although the Veteran is competent to describe scarring of the neck, he is not competent to diagnose himself as having a burn or other skin disorder. A neck scar, caused by burns, can be shown by unique and readily identifiable features. However, clinical testing/examination which does not show any burns or scarring resulting from burns by a physician or medical professional, does not result in a diagnosis. This makes the Veteran's statements unsubstantiated and, therefore, they lack consistency.
Thus, since the evidence does not show that he presently has any skin disorder as a result of burns, or has had it at any time since filing his claim, there is no basis upon which to grant service connection. Service connection for a skin disorder as a result burns from an explosion is not warranted.
Left side peripheral neuropathy
It is asserted on the part of the Veteran that service connection is warranted for left side peripheral neuropathy.
Service treatment records are devoid of findings, treatment, or diagnoses of left side peripheral neuropathy in service, within one year of service discharge, or at any time during the pendency of this appeal.
Again, service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C.A. § 1110 (West 2014); Rabideau v. Derwinski. In the absence of proof of a present disability there can be no valid claim." See Brammer v. Derwinski. There is no evidence that the Veteran has or ever had left side peripheral neuropathy, nor that it has been sufficiently claimed by the Veteran. As a result, service connection for left side peripheral neuropathy is not warranted and the claim must be denied.
GERD
The Veteran claims that service connection is warranted for GERD based on service incurrence. In the alternative, it is maintained that his GERD is secondary to his service-connected psychiatric disability.
Service treatment records showed that in December 1976, the Veteran was seen with a history of epigastric generalized abdominal pain. There was no nausea, vomiting, or fever. Physical examination revealed generalized abdominal tenderness and guarding rebound. The Veteran reported a long history of epigastric pain on the right and left upper quadrant. The pertinent diagnostic impression was rule out peptic ulcer. He was scheduled for an upper gastrointestinal and gallbladder series. The results of the KUB showed normal findings. No other findings related to GERD were reported. No findings, treatment, or diagnosis of GERD were shown on the separation examination report.
After service, the Veteran underwent a VA examination in February 2016. The Veteran indicated that he was diagnosed with GERD around 1991 and at the time of the examination was prescribed Omeprazole. He stated he was told to take it daily but he stated that he took the medication about once or twice a week. His GERD symptoms were primarily belching, bubbles of air, and occasional reflux. Sometimes when he swallowed he felt like food got stuck at the level of his thyroid and he learned to take smaller bites. Food felt like it got stuck several times a week for at least a couple of years. He stated that he reported these symptoms to his doctors. He recalled this was worked up at VA and the work-up was negative. His symptom of this condition was reflux. The examiner stated that the claims file and the medical literature including UpToDate were reviewed. Based on the history per medical records in the VBMS file, the Veteran had longstanding mental health issues and polysubstance abuse history. He developed GERD as a middle aged adult. The examiner stated that this was a condition that commonly developed in middle aged men, including men with no history of military service, no history of mental health issues, and no history of polysubstance abuse.
The Veteran indicated his GERD disorder was diagnosed in 1991, 13 years after service discharge. No evidence of record shows, nor does the Veteran allege, that he had treatment or was diagnosed for GERD in service. In light of the fact that there was no evidence associated with service, GERD is not warranted on a direct basis.
In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998).
In this regard, the Veteran has been diagnosed with GERD, and he has evidence of a service-connected psychiatric disability. However, there is no medical evidence linking the Veteran's claimed GERD with his service-connected psychiatric disorder. In fact, the February 2016 VA examiner stated that the Veteran's GERD was a result of his age, being diagnosed for GERD when he was a middle aged man. The examiner indicated that it (GERD) was commonly developed in middle aged men with no history of military history, mental health issues, or substance abuse history.
As such, service connection for GERD on a direct basis or secondary to a service-connected psychiatric disability is not warranted.
Sleep disorder
Service treatment records are negative for complaints, diagnosis or treatment for a sleep disorder in service.
VA outpatient treatment records show that the Veteran has been diagnosed with and treated for anxiety disorder, NOS, and depression, NOS. He has reported difficulty sleeping in association with his depressive symptoms. See March 2010 VA treatment records. He has also reported problems with insomnia and nightmares. He has erratic sleep, totaling 3 hours a night (broken sleep), nightmares nightly, related to trauma, and he dozes off during the daytime. (See March 2009 VA treatment record). At a March 2010 VA examination, it was stated that he had difficulty staying and falling asleep, but with Trazodone, he seemed to do well. However, he has never been diagnosed with a chronic sleep disorder. Specifically, in March 2009, it was noted he had no history of obstructive sleep apnea. In December 2012, he was prescribed medication to assist in sleeping.
There is no other evidence of record, VA or private, of a diagnosed chronic sleep disorder.
The Veteran underwent a VA examination in February 2016. The examiner opined that it is less likely than not (less than 50 percent probability) that a sleep disorder was incurred in or caused by service. The examiner provided a rationale that the Veteran's insomnia symptom was related to his service-connected anxiety and depression disorders as a symptom, and not as an independent condition.
As noted above, service connection requires a showing of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A current disability is shown if the claimed condition is demonstrated at the time of the claim or while the claim is pending. McClain v. Nicholson, 21 Vet. App. 319 (2007).
The Veteran is competent to report that he experienced symptoms related to his sleep problems in service, and that he has continued to experience these symptoms since his discharge. However, a chronic sleep disorder, separate from his service-connected anxiety disorder, NOS, and depressive disorder, NOS, has not been shown during the current appeal period. In the absence of a current disability, service connection for a sleep disorder is not warranted.
Furthermore, the Board notes that the sleep condition the Veteran is seeking service connection for may not be separately service connected if determined to be a manifestation of his service-connected anxiety disorder, NOS, and depressive disorder, NOS. See Brady v. Brown, 4 Vet. App. 203 (1993) (addressing whether a veteran may receive separate ratings for a psychiatric disorder and physical symptoms associated with that disorder); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994) (citing the application, in Brady, of an "exception to the rule that all disabilities are to be rated separately").
The medical evidence of record shows that the Veteran's claimed symptoms of chronic sleep impairment have been attributed to his already service-connected anxiety disorder, NOS, and depressive disorder, NOS, rather than to separate organic causes. See Brady, supra.
The Board also acknowledges that the Veteran is competent to report on events and symptoms he has experienced. However, the etiologies of the symptoms attributed solely to the service-connected anxiety disorder, NOS, and depressive disorder, NOS, are not subject to lay observation, and fall outside the realm of common knowledge of a lay person. The diagnoses of a chronic sleep disorder, or the underlying causes of sleep disorder symptoms, are based on clinical findings, and are medical in nature. Due to the medical complexity of the issue involved, the Veteran's assertions alone are insufficient to establish service connection. As a lay person, he has not been shown to be qualified through education, training, and expertise to offer an opinion on a medical diagnosis or on medical causation. Thus, his lay assertions are of little, if any, probative value when offered to establish medical etiology. See Jandreau, 492 F.3d 1372 (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Moreover, whether the symptoms the Veteran has described experiencing are in any way related to a current diagnosis is also a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) Thus, the Veteran's own opinion regarding the onset and etiology of any current or past diagnoses related to the subjective symptoms for which he seeks service connection is not competent evidence to create the requisite nexus, and the Board also finds the medical evidence of record more probative on that issue.
In summary, the probative medical evidence of record indicates that the chronic sleep impairment, for which the Veteran is seeking separate service connection is, to the extent it has been presented during the course of the claim, a manifestation of his already service-connected anxiety disorder, NOS, and depressive disorder, NOS, rather than a separate, organic disorder. Accordingly, a separate grant of service connection for a sleep disorder is not warranted. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt standard of proof does not apply.
ORDER
Service connection for a low back disorder, to include as secondary to a service-connected disability, is denied.
Service connection for a skin disorder, as a result of burns from an explosion, is denied.
Service connection for left side peripheral neuropathy, to include as secondary to a service-connected disability, is denied.
Service connection for GERD, to include as secondary to a service-connected psychiatric disability, is denied.
Service connection for a sleep disorder, to include as secondary to a service-connected psychiatric disability, is denied.
REMAND
Further development is necessary prior to final adjudication of the remaining claims.
The Veteran claims that service connection is warranted for hypertension, to include as secondary to service-connected psychiatric disability. In this regard, Virtual VA records of March 2015 (17/319) indicate a medical history of hypertension. During his examination, he demonstrated blood pressure of 169/109 (standing) and 165/101 (lying down). Repeat blood pressure of 130/70 in the emergency department was shown without intervention. The examiner stated that he thought that the Veteran had anxiety (for which he is service connected) which was contributing to his symptoms.
These findings were not sufficiently addressed in the Veteran's February 2016 VA examination. The Veteran was diagnosed with hypertension in 1992. The opinion indicated that the Veteran had longstanding mental health issues, polysubstance abuse history, and smoking. He developed hypertension as a middle-aged adult. The examiner noted that hypertension commonly develops in middle-aged men, including men with no history of military service, no history of mental health issues, no history of polysubstance abuse, and no history of smoking. However, the examiner did not consider the etiology of the Veteran's hypertension with regard to his service-connected anxiety disorder. The March 2015 examiner's opinion was that anxiety could be contributing to the Veteran's hypertension, and it indeed could be at least as likely as not that his service-connected anxiety disorder could cause or aggravate his diagnosed hypertension on a secondary basis. Therefore, the examination was inadequate in its determination as to whether the Veteran's service-connected anxiety caused or aggravated his hypertension. See 38 C.F.R. § 4.2 (2016). Another VA examination must be provided to address the lack of these findings as set forth in the March 2015 records.
Additionally, the Veteran claims his ED is due to or aggravated by a service-connected disability. The February 2016 ED examination indicated that longstanding hypertension as a risk factor for ED. Once the claim for hypertension secondary to service-connected anxiety disorder is addressed, if service connection for hypertension is granted, the claim for service connection for ED, secondary to hypertension, must be addressed. Aggravation of ED by hypertension is of importance in this regard.
The Veteran also claims that service connection for PTSD is warranted. A February 2010 formal finding on a lack of information required to corroborate stressors associated with PTSD was made. There was a determination that the information required to corroborate the stressful events described by the Veteran was insufficient to be sent to the United States Army and Joint Services Records Research Center (JSRRC) and of the Marine Corps, National Archives and Records Administration (NARA) records.
The Veteran has indicated in October 2008 in Virtual VA records (326/644) that three incidents occurred within approximately three months of each other which he claims as his stressors. A sergeant (Sgt. R.) committed suicide by gun and the Veteran was the first on the scene. A sergeant (Sgt. M) killed his wife with a bat then cut his stomach open. The Veteran said he was the first on the scene and had to hold the Sgt.'s stomach together until first aid arrived. Finally, a private (Pvt. T), who was underage, from Arkansas, and a friend of his, committed suicide while they were stationed together. The Veteran stated that he was an MP in Panama when these incidents occurred, but his records indicated that he was a guard at that time. Service treatment records of November 1977 are indicative of his claimed stressors. As such, an attempt should be made to corroborate his claimed stressors.
Further, the issues of initial increased ratings for anxiety disorder, NOS, and depressive disorder, NOS; TBI; and headaches, as well as entitlement to earlier effective dates for the grants of service connection, are inextricably intertwined with the claim for service connection for PTSD. Therefore, these issues will be held in abeyance until entitlement to PTSD is adjudicated. The claim for TDIU is also held in abeyance until the completion of all of the above claimed issues.
Accordingly, the case is REMANDED for the following action:
1. Obtain and associate with the claims file any updated, pertinent VA treatment records, and associate those records with the claims file.
2. Following completion of the above, the AOJ should arrange for an addendum to the February 2016 VA examination to determine the nature and etiology of any currently diagnosed hypertension. The examiner should provide an opinion, with supporting rationale, as to whether it is at least as likely as not (probability of 50 percent or greater) that:
The Veteran's service-connected anxiety disorder, NOS, and depressive disorder, NOS, caused or aggravated any hypertension disorder the Veteran may have. The examiner should specifically address Virtual VA records of March 2015 (17/319) that indicate a medical history of hypertension and wherein the examiner stated that he thought that the Veteran's service-connected anxiety is contributing to his symptoms
If it is determined that aggravation beyond the natural progress of hypertension exists, the examiner should be asked to identify the baseline level of severity of the symptoms prior to aggravation and the level of severity of symptoms due to service-connected aggravation.
The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability.
The VBMS claims file and/or Virtual VA Folder must be made available to the examiner for review and the examiner should indicate in his/her report whether or not the files were reviewed. Supporting rationale must be provided with all requested opinions. If the examiner cannot provide an opinion without resorting to mere speculation, such should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question.
3. The Veteran should be scheduled for an appropriate examination to determine the etiology of his ED. It should be determined whether it is at least as likely as not (probability of 50 percent or greater) that:
The Veteran's service-connected hypertension caused or aggravated any ED the Veteran may have.
If it is determined that aggravation beyond the natural progress of ED exists, the examiner should be asked to identify the baseline level of severity of the symptoms prior to aggravation and the level of severity of symptoms due to service-connected aggravation.
The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability.
The VBMS claims file and/or Virtual VA Folder must be made available to the examiner for review and the examiner should indicate in his/her report whether or not the files were reviewed. Supporting rationale must be provided with all requested opinions. If the examiner cannot provide an opinion without resorting to mere speculation, such should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question.
4. The AOJ should contact the National Archives and Records Administration (NARA), the Joint Services Records Research Center (JSRRC), and any appropriate agency, and attempt to verify the claimed stressors reported by the Veteran. Specifically, the appropriate agency should be asked to verify whether in late 1976 to mid-1977, Sgt. R. killed himself with a gun, Sgt. M. killed his wife with a bat, and then attempted suicide by cutting his stomach, and Pvt. T, an underage Marine from Arkansas, committed suicide. These three Marines were in Panama at the same time as the Veteran was stationed there. The Veteran's November 1977 mental health hospital records should be addressed in this regard. If he has any other stressors or any other stressors need to be clarified, the AOJ should allow the Veteran to present that evidence prior to sending the information to the JSRRC and NARA.
5. Thereafter, the Veteran should be afforded a PTSD VA examination to determine the nature and etiology of his claimed PTSD. All indicated tests and studies are to be performed. In connection with the examination, the claims file must be made available to the examiner (a VA psychologist or psychiatrist) for review of the case. A notation to the effect that this records review took place should be included in the report of the examiner.
Based on a review of the VBMS/VVA file, examination of the Veteran, and utilizing sound medical principles, the examiner is requested to offer an opinion, with full supporting rationale, as to whether the Veteran has PTSD meeting the criteria of DSM-5 and, if so, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's PTSD is of service onset or the result of any in-service verified event.
If a diagnosis of PTSD is deemed appropriate, the examiner must identify the specific stressor(s) underlying the diagnosis, and should comment upon the link between the current symptomatology and the Veteran's claimed stressor(s). The examiner should also address whether the PTSD findings are associated with the already service-connected anxiety disorder, NOS, and depressive disorder, NOS, or if they are of symptomatology that is distinct from the already service-connected disabilities.
6. If the issue of service connection for PTSD is granted, the issues of an initial rating for anxiety disorder NOS and depressive disorder NOS, an earlier effective date for the same, an initial rating for TBI and an earlier effective date for the same, headaches and TDIU are to be readjudicated.
7. When the development requested above has been completed, the case should be reviewed by the AOJ on the basis of the additional evidence. If the benefits sought on appeal are not granted, the Veteran and his attorney-representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs